Spring 2017

This case identifies factors that should be taken into account in flashbang deployment guidelines and policies. The Court clearly was disturbed that a flashbang was tossed into a bedroom where people were asleep and who could easily be harmed by the flashbang (as demonstrated by Dukes’ injuries). At least one occupant in that bedroom (Dukes) was not the basis of the criminal investigative effort. The time of execution, 5:30 AM, made it reasonable to believe the occupants would be asleep in the bedroom. Contrary to training, Officer Deaton failed to inspect the room for occupants before he deployed the flashbang. There was no independ- ent circumstance to support use of the flashbang by Deaton. The two previously deployed flashbangs, done in areas that were not occupied, appeared to have done what they were intended to do by stunning and con- fusing Ward. Officers successfully entered and secured the apartment.

Agencies should review their flashbang use policies and, in conjunction with their legal advisor, assure that situations such as the facts in this case are identified as circumstances that have now been identified by case law as constituting excessive force. The case states some judicial common sense by indicating exploding a flashbang in a bedroom occupied by sleeping people will—absent some other type of justification—be exces- sive force.

This case does not announce a prohibition against all use of flashbangs in a residential situation. Even with this ruling, if occupants of a bedroom began actively resisting officers, the situation becomes different than what happened in the Dukes case. Depending on the facts encountered, use of a flashbang in response to developing resistance circumstances could very well be considered a reasonable use of force.

Even though the facts of Dukes are narrow, Florida law enforcement still must recognize there is now “clearly established law” that deployment of a flashbang in a bedroom where people are asleep is excessive force. Acting in a manner that ignores or violates clearly established law will result in the actor not receiving quali- fied immunity from suit. Florida training and policy must immediately begin to take the Dukes ruling into ac- count when addressing flashbang use.

Note: This article does not provide legal advice, but reflects the opinion and analysis of the author. Agencies should consult with their legal advisor to determine whether the Dukes case will require modification of flashbang training, 11 guidelines or policy and act accordingly. ###

In Memoriam Line of Duty Deaths

Lieutenant Debra Clayton, Orlando Police Department EOW: January 9, 2017

Deputy First Class Norman Lewis, Orange County Sheriffs Office EOW: January 9, 2017

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